MISSOURI COURT OF APPEALS INTERPRETS STATUTE REGARDING WHAT IS INCIDENTAL TO THE PRACTICE OF ARCHITECTURE

In Curtis v. Miss. Board For
Architects, Prof. Engineers, Prof. Land Surveyors, and Prof. Landscape
Architects, No. WD 80174, 2017 WL 2241516 (Mo. Ct. App. May 23, 2017), the
Missouri Court of Appeals affirmed the Missouri Board of Architects,
Professional Engineers, Professional Land Surveyors, and Professional Landscape
Architects’ (the “Board”) disciplinary order against an architect for violations
of a previous probation order. Donald
Dustin Curtis was an architect based in Arizona and licensed in multiple
jurisdictions, including Missouri. Mr.
Curtis’s license was placed on probation in Missouri for one year after he
failed to inform the Board of disciplinary action in Nevada. As part of his probation Mr. Curtis was
required to submit his plans for any projects in Missouri to the Board for
review.

Mr. Curtis allegedly violated his probation
by providing plans and drawings to the Board for Review that included plumbing
and lighting changes, which the Board concluded required the services of a
licensed mechanical or electrical engineer. Mr. Curtis appealed the Board’s
decision to the Missouri Court of Appeals, arguing the engineering he provided was
merely “incidental to the practice of architecture” and therefore was allowed.

The Court of Appeals, as a matter of
first impression, interpreted the definition of the term “incidental practice”
as found in Mo. Ann. Stat. § 327.011(9).
The Court rejected the Board’s implication that only the Board can
determine what work is incidental to the practice of architecture and that Courts
have no basis make such a determination. The Court of Appeals held Courts may
look at the evidence contained in the record to establish whether conduct can
be considered an “incidental practice.”

The Court then concluded Mr. Curtis’s
failure to understand and apply engineering concepts related to plumbing and
lighting, including necessary standards and calculations, was sufficient
evidence to determine Mr. Curtis exceeded the scope of engineering “incidental”
to architectural work. The Court recognized the scope of engineering performed
by Mr. Curtis was substantially less than typical engineers and that Mr. Curtis
had education and experience in engineering.
However, the Court noted that Mr. Curtis could not “safely and
completely” perform the work. Based on
this lack of experience, the Board found the engineering work was more than
simply “incidental,” because Mr. Curtis lacked the education, experience or
training to complete it safely.

The issue of what amount of
engineering an architect is allowed to perform is a big problem around the
country. This decision gives us further
insight as to the definition of “incidental practice” by tying the issue back
to the technical ability of the architect to do the work. The Court’s
interpretation still did not directly address exactly what types of evidence are
essential to the decision as to what constitutes more than the “incidental”
practice of architecture, meaning there is still plenty of ambiguity. Architects should remain cautious in
providing engineering design and, when possible, engage a licensed engineer to
provide this service.